Supreme Court Of Pakistan Cites Indian Supreme Court's Judgment On Avoiding Gender Stereotypes

In a significant judgment for gender equality and continued recognition of women's legal rights, the Supreme Court of Pakistan overturned the judgment of a Khyber Pakhtunkhwa Service Tribunal, Peshawar, which held that "a married daughter becomes a liability of her husband" and therefore, not eligible for compassionate appointment of the deceased son/daughter quota. It held that the language deployed in the judgment is only factually and legally erroneous but also "deeply patriarchal" as it reinforces outdated stereotypes.

Citing the Supreme Court of India's judgment in Aparna Bhat v. State of Madhya Pradesh (2021) on how judges should avoid the use of stereotypical language in the judgments, a division bench of Justices Syed Mansoor Ali Shah and Athar Minallah observed: 

"Such language is not only factually and legally erroneous, but also deeply patriarchal, reinforcing outdated stereotypes that are fundamentally incompatible with constitutional values. It assumes that a woman's identity, legal capacity, personhood, and entitlement to support are subsumed into that of her husband upon marriage, treating her as a dependent rather than an autonomous, rights-bearing individual. The use of gender biased language by judicial or administrative bodies does not merely reflect prevailing social prejudices, it perpetuates and legitimizes structural discrimination, and risks encoding bias into the law itself. Globally, it has been recognized that the language of judicial reasoning plays a critical role in shaping, affirming, or undermining substantive equality.

As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them. In this context, the Feminist Judgments Project undertaken in several jurisdictions including Pakistan has demonstrated how judicial reasoning can be reframed through a feminist lens, applying existing legal principles while eschewing gendered assumptions and incorporating inclusive, equality-affirming language. The core premise is clear: how law is written matters a much as what it decides. Thus, we deem it imperative to reaffirm that all judicial and administrative authorities bear a constitutional responsibility to adopt gender-sensitive and gender-neutral language. This is not a mere formality, but reflects a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution. The judiciary must lead by example, ensuring that the words used to interpret and apply the law do not themselves become instruments of exclusion."

In Aparna Bhat's case, the Supreme Court of India had set aside the Madhya Pradesh High Court judgment wherein the Court had imposed a bail condition upon the person (accused of outraging the modesty of his neighbour) to request the victim to tie the rakhi around his wrist. The Court held that using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment.

By setting aside the Tribunal's judgment, the Supreme Court of Pakistan strikes down an executive clarification, which excluded married daughters from compassionate appointments under the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989, as "discriminatory, ultra vires, issued without lawful authority and incompatible with Pakistan's constitutional guarantees and international legal obligations".

Various other Indian judgments have been cited in this case.

The Court found that the parent rule is gender-neutral and inclusive, and despite that, an executive clarification was issued subsequently denying married women from the deceased son/daughter quota for compassionate appointments. It held that the impugned clarification represents an impermissible revival of the discredited common law doctrine of coverture, under which a woman's legal existence was subsumed into that of her husband.

" The language of the rule is inclusive, indicating that the benefit is to be extended equally to all children, without distinction based on gender, marital status, disability or religion. Therefore, a plain reading of the provision indicates that a married daughter falls within the scope of “one of the children” and cannot be excluded solely on the basis of her marital status.

...Second, and more critically, we have noticed that the impugned clarification introduces a discriminatory classification by excluding married daughters from eligibility, despite Rule 10(4) containing no such restriction, while allowing married sons to benefit under the same provision. Such a distinction does not meet the test of reasonable classification under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). It is well settled that reasonable classification must be founded on an intelligible differentia and must bear a rational nexus to the object sought to be achieved by the law.

In the present case, the exclusion of married daughters, despite the rule itself being inclusive and silent on marital status lacks any rational basis. No intelligible differentia is discernible between a married son and a married daughter that would justify such exclusion in light of the underlying purpose of Rule 10(4), which is to provide compassionate economic relief to the bereaved family of a deceased or incapacitated civil servant. This arbitrary classification is thus not only unreasonable but plainly unconstitutional, offending the guarantees of equality (Article 25), non-discrimination in public service (Article 27), and the right to dignity (Article 14)."

While observing so, the Supreme Court of Pakistan affirmed that women's legal rights are not contingent upon their marriage by citing words of feminist scholar, Martha Fineman:

" A women's legal rights, her personhood, and her autonomy are not erased by marriage, nor should they be contingent upon it."

As per brief facts, the petitioner, Zahida Parveen, was appointed as a primary school teacher at Government Girls Primary School under the deceased son/daughter quota pursuant to Rule 10(4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989.

Rule 10(4) reads as: "Where a civil servant dies or is rendered incapacitated/invalidated permanently during service then notwithstanding the procedure provided for in sub-rule (2), the appointing authority may appoint one of the children of such civil servant, or if the child has not attained the age prescribed for appointment in Government Service, the widow/wife of such civil servant, to a post in any of the Basic Pay Scales 1-10."

Subsequently, her appointment was withdrawn without any show cause notice based on an executive clarification which states that any benefit of appointment under the deceased son/daughter quota is not available for a female who has contracted marriage. There was a further clarification by the Government, which states that a married daughter may be considered for appointment only if she has separated from her husband and is dependent on her parents.

She had approached the Khyber Pakhtunkhwa Service Tribunal, Peshawar, which dismissed her plea. 

Exclusion of women from compassionate appointment reflects a deeper structural flaw

The Supreme Court of Pakistan also went on to say that the exclusion of married women from the ambit of Rule 10(4) reflects a "deeper structural flaw grounded in patriarchal assumptions" about a woman's identity and her role within the legal and economic order. 

" It presumes that upon marriage, a woman relinquishes her independent legal identity and becomes economically dependent on her husband, thereby forfeiting entitlements available to similarly situated male counterparts. At its core, this exclusion constitutes a denial of a woman's right to financial and economic independence––rights that are not ancillary but essential to the exercise of constitutional personhood. The Constitution guarantees rights to individuals, not to marital units or prescribed social roles. Women are autonomous, rights-bearing citizens in their own right, not by virtue of their relationship to a man, be it father, husband, or son. Financial independence is not a privilege but a necessary precondition for the  full realization of citizenship, autonomy, and personhood. A married daughter remains equally a child of her deceased parent, and to deny her this entitlement on the basis of marriage is to deny her constitutional identity as an equal citizen.

It bears mentioning that the principle of a woman's financial independence is not only grounded in the constitutional text but is also firmly embedded in the Islamic legal tradition. Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status.Therefore, any presumption that a married woman becomes financially dependent on her husbandis not only legally untenable but also religiously unfounded, and contrary to the egalitarian spirit of Islamic law."

Exclusion reflects a regressive and untenable concept of womanhood

The Court also observed that the exclusion of married women is also reflective of a regressive and untenable concept of womanhood- one that conditions a woman's civic and economic identity on her relationship to a man. The Court cites feminist legal scholars such as Martha Finemand, Bell Hooks, and Simone de Beauvoir here and holds, "the Constitution neither recognises marriage as a status diminishing event nor permits the State to presume dependency on that."